Wills & Trusts Flashcards
Wills: Capacity + Insane Delusions
(1) 18 or older
(2) T understands the nature of her ACT
(3) T understands the nature and extent of her PROPERTY
(4) T understands the NATURAL OBJECTS of her bounty
If T has conservator or has a mental disorder, capacity is likely a problem, but is not dispositive. Go through steps # 1 - 4.
The effect of lack of capacity: THE WHOLE WILL = INVALID
For insane delusions (T has false belief that is product of sick mind that is not factually supported): only the part of the will affected by the delusion is rendered invalid
Wills: Undue Influence [Prima Case + Case Law Presumption + Statutory Presumption]
Undue Influence = where wrongdoer substitutes his intent for that of the testator
––Distinguishing fraud: fraud involves a lie, whereas undue influence is a situation where the wrongdoer is being completely honest, albeit wrongfully
Prima Facie Case
(1) Susceptibility: T has a weakness that impairs his free will [broad–can be anything]
(2) Opportunity: wrongdoer had access to T
(3) Motive: wrongdoer has disposition to exert influence
(4) Causation: an unnatural result which appears to be the result of undue influence
Case Law Presumption
(1) confidential relationship;
(2) wrongdoer is active in the procurement or execution of the will; AND
(3) an undue benefit results
Statutory Presumption
(a) donative transfer to person who drafted/transcribed the will
(b) donative transfer to a care custodian
(c) donative transfer to spouse/relative/employee of (a) or (b)
(d) donative transfer to a care custodian less than 6 months after marriage/cohabitation with dependent transferor
Intestate Succession: distribution of SP
Surviving spouse gets 100% if decedent leaves no: Issue, Parents, Siblings, or Issue of siblings
Surviving spouse gets 50% if decedent is survived by: one child; issue of predeceased child
Surviving spouse gets 50% if decedent is survived by: parent; sibling
Surviving spouse gets 33% if decedent is survived by: 2 or more children; 2 or more issue of predeceased children
If no surviving spouse: intestate succession scheme applies... –Issue [D's child] –Parents –Issue of Parents [D's brother] –Grandparents –Issue of Grandparents [D's uncle]
Wills: 120-hour rule
If D dies intestate, and it CANNOT be determined with clear and convincing evidence that D’s issue (C) survived D by 120 hours, C will be deemed to have predeceased D. Consequence: C won’t take
Wills: Per Capita v. Per Stirpes
Per Capita Representation: the property is divided into equal shares at the first generational level at which there are living takers, and the shares of deceased persons at that level pass to their issue by representation
Per Stirpes: Make the distribution at the first generation or first level, even if everyone is dead, so long as they left issue
Requirements of an Attested Will
(1) writing
(2) signed by T
(3) two witnesses to T’s signature, both present at same time
(4) both witnesses sign during T’s lifetime
(5) both witnesses understood they were signing T’s will
Note: harmless error rule applies to requirements 3-5 –– meaning, if clear and convincing evidence that T intended the instrument to be his will at the time of signing, then the will can be probated without the witnessing requirements being satisfied
Attested Will: Interested Witness
Will is NOT invalid
Rebuttable presumption arises that witness-beneficiary secured the gift by wrongdoing (e.g., undue influence)
If W cannot rebut, she takes the amount that would be given by intestacy
Holographic will: requirements
(1) signed by T
(2) material terms are in T’s own handwriting (GIFTS and BENEFICIARIES)
Note: date is NOT required
Integration
Paper PRESENT @ execution that T intends to be the will
Establish by PHYSICAL or LOGICAL connection
Incorporation by Reference
Definition: Non-integrated writing is given testamentary effect and becomes part of the will
Example: “I leave my property to grantee named in the ABC deed”
Requirements:
(1) document/writing that EXISTS apart from the will
(2) document/writing was in existence WHEN will was executed
(3) document/writing is CLEARLY identified in the will
(4) T INTENDED to incorporate the document/writing into the will
Note: in the above example, it is immaterial whether the ABC deed is valid–all that matters is that the four requirements are met: separate writing that existed when will was executed, which was clearly ID’d, and T intended to incorporate the writing into the will
Facts of Independent Significance
Who a beneficiary is, or what gift is given, may be determined by facts of significance independent from T’s will
Trustworthy extrinsic evidence can be admitted
The test: even without the will, would this fact have existed?
Writings that Dispose of Limited Personal Property (Section 6132) –– trigger? elements?
Trigger: there is a writing separate from the will that does not satisfy incorporation by reference or facts of independent significance
Elements: can be admitted if…
(1) writing is (i) referred to in the will, (ii) dated, and (iii) signed or handwritten by the testator
(2) writing describes items and recipients with reasonable certainty
(3) directs disposition of tangible personal property that is $5k or less per item and $25k or less in aggregate
Revocation by physical act: elements
(1) Burned / Torn / Cancelled / Destroyed / Obliterated
(2) T has simultaneous intent to revoke
(3) Act done by T, or by someone in T’s presence and at T’s direction
Cancellations and Interlineations: attested wills and holographic wills
Attested wills
––for an interlineation to be effective, it must meet the requirements of a holographic codicil (material terms (gift + beneficiary) must be in T’s handwriting)
Holographic wills
––handwritten edits to holo will are valid (signature is adopted)
Pretermitted Child (Mistake re Living Children)
Child who is born after execution of all testamentary instruments, and is not provided for in the testamentary instruments, WILL TAKE an INTESTATE SHARE. The rationale is that the testator made a mistake in failing to include the child. [Mention abatement (reduction of certain gifts in the will) if this comes up]
Exceptions
(i) T’s failure to include the child was intentional and evidence of that intent is reflected in the instrument
(ii) At the time of execution, T had a child, and had transferred substantially all of his estate to the other parent of the omitted child, neither that child nor a subsequent child will take
(iii) T provided for the child by a non-testamentary instrument, in lieu of a will
ALSO, if a child is born BEFORE all testamentary instruments are executed and not provided for, he is TREATED AS IF PRETERMITTED, if the ONLY REASON the child was not included was b/c testator erroneously though child was dead or non-existent
Omitted Spouse
T marries after S after execution of all testamentary instruments and S is not provided for in the testamentary instruments. What will S take?
––CP/Quasi-CP: will end up with 100%
––SP: S will take an intestate share up to 50% of the value of the SP estate
Lapse + Anti-Lapse
For a beneficiary to take, she must survive the testator. When the beneficiary predeceases T, the gift lapses. California has an anti-lapse statute, which applies only if (1) the predeceased beneficiary was “kindred” (i.e., blood relative, including adopted children and stepchildren) of the testator (or was kindred of a surviving, deceased, or former spouse of the testator) and (2) the predeceased beneficiary left issue. Per capita with representation applies.
Classifying Gifts: General Devise; Specific Devise; Demonstrative Devise; Residuary Devise
General
––gift to be paid out of the estate’s general assets, without any requirement that the funds come from a specific source. If the gift is of a particular item or items, then it is considered a specific legacy, unless the testator does not own the item (e.g. stock shares) and intends for the executor to purchase it for the beneficiary.
––significance: does NOT adeem by extinction
Specific
––gift of a particular item of property distinct from all other objects in the testator’s estate
––significance: DOES adeem by extinction
Demonstrative
––a hybrid—it is treated as a specific legacy to the extent the source of payment is available and a general legacy to the extent of any shortfall of that source of payment
Residuary
––all other property not expressly disposed of in the will
Ademption by Extinction
Specific gift fails because T does not own at his death
if T did not have the intent for the specific gift to fail, then it will not be adeemed by extinction. T will not have the intent in these situations…
––(i) stock changes form
––(ii) conservator sells off assets
––(iii) eminent domain; insurance proceeds
Steps of analysis
(1) argue general classification
(2) if that fails, try to trace
Ademption by Satisfaction
T gives beneficiary an inter-vivos down payment on a devise
Advancements
an advancement is like ademption by satisfaction, except that it applies in intestacy situations
important distinction: if the heir-apparent dies before T, she will NOT be considered to have received an advancement; whereas in the ademption by satisfaction situation, if the heir dies, the down payment will be subtracted from when the heir’s heirs would take.
Will: waiver
a spouse’s or domestic partner’s waiver of rights must be in writing and signed by the waiving spouse or domestic partner
No-contest clause
beneficiary who contests a will with a no-contest clause does not forfeit her bequest if the challenge is unsuccessful but was brought in good faith and based on PC. The contest itself does not trigger forfeiture unless the court finds that no reasonable grounds existed for contesting the will (i.e., it was a suit designed to provoke a settlement).
